3
human succession, which “was destined to the calamitous events of life.”7 As J.
Milton said in his universal work, Paradise Lost (1667),
"(...) like one of us Man is become
To know both Good and Evil, since his taste
Of that defended Fruit; but let him boast
His knowledge of Good lost, and Evil got,
Happier, had it suffic'd him to have known
Good by it self, and Evil not at all."8.
8.
Everyone has experienced or become aware of some expression of the
violence that human beings carry within themselves. No one can deny the finite
nature of human beings, highlighted by a feeling of powerlessness in face of brutality
and injustice, and the suffering they entail, reflected in tragedy over the centuries.9
In the age of the modern nation-State, abominable crimes have been committed in
the name of alleged “State security”, and citizens have been placed in the most
pitiless human insecurity. State security (originally conceived for the realization of
the common weal) and that of the human person have not gone hand in hand; quite
the contrary, the former has often been invoked as a pretext to unduly restrict the
latter. The facts in the instant case eloquently show this historical distortion.
9.
In the instant Judgment in the case of the Gómez Paquiyauri Brothers, the
Court has, in short, found that one of the proven facts is that
"At the morgue the bodies of Rafael Samuel and Emilio Moisés Gómez
Paquiyauri were full of blood and dirt, wet, dirty; there was encephalic mass on their
hair, and one of Emilio’s fingers was missing. In both of them, the eyes were missing”
(para. 67(j)).
10.
Working for human rights, then, entails sharing the deepest human suffering,
being in contact with the evil within each person since the fall of the first two human
beings in Eden. Working effectively for human rights, with concrete results, is to
once again find the good that is also within each person, and to help attain
redemption through the realization of justice. The first step, on the difficult path in
search of justice, is to identify the origin of the responsibility of the State, that is, to
establish how said responsibility arises.
II.
the State
Establishment of the Emergence of the International Responsibility of
11.
At the outset, I must point out that inclusion in the instant Judgment of the
Inter-American Court, of a chapter (VIII) on the International Responsibility of the
State, as it has been addressed in the respective adjudicatory proceeding, evinces
the need to take general international law and the general principles of international
law into account, together with the provisions of the American Convention on Human
Rights, when applying a treaty such as the latter. In point of fact, the general theory
of exhaustion of domestic remedies, in international law, has for a long time had to
7
Ibid., book X, verses 967-991.
8
Ibid., book X, verses 84-89.
.
.
9
.
See W. Kaufmann, Tragedy and Philosophy, 2d. ed., Princeton/N.J., Princeton University Press,
1992, pp. 131, 133, 309 and 315.
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